Advocates aim to close Mass. gender wage gap

April 9 was Equal Pay Day, an annual event that marks how far into this year the average U.S. woman needed to work, on top of all of 2012, to earn as much as a man did last year.

By David Riley

The Herald News, Fall River, MA

By David Riley

Posted Apr. 27, 2013 at 12:01 AM
Updated Apr 27, 2013 at 7:23 PM

By David Riley

Posted Apr. 27, 2013 at 12:01 AM
Updated Apr 27, 2013 at 7:23 PM

» Social News

April 9 was Equal Pay Day, an annual event that marks how far into this year the average U.S. woman needed to work, on top of all of 2012, to earn as much as a man did last year.

The occasion passed with Bay State advocates for pay equity still trying to pass a one-sentence update to a state law that bars wage discrimination based on gender, 15 years after they believe a decision by the state’s top court revealed the law is too vague.

It’s not clear if the so-called comparable work bill will fare any better this year. Supporters are cautiously hopeful it will advance, along with related legislation, as the wage gap gets more public attention and after at least two recent reports highlighted the state’s low national rank in terms of equal pay for women.

“We live in hope,” said Sen. Pat Jehlen, D-Somerville, the bill’s longtime sponsor in the state Senate.

In 1998, the state Supreme Judicial Court overturned a lower court judge’s ruling in favor of female cafeteria workers who sued the Everett schools for wage discrimination because the district paid its custodians, all men, about twice as much.

The state’s Equal Pay Act, passed in 1945, bars employers from paying men and women differently “for work of like or comparable character or work on like or comparable operations,” except in cases of seniority.

The trouble is, the law never explains how courts should decide what makes jobs “comparable,” according to Jehlen and other lawmakers who support updating the law. The Supreme Judicial Court also has noted there is no definition in state statute.

In the Everett case, the original judge found both jobs in general required “comparable skill, effort, responsibility and working conditions.” The top court rejected this approach and said the judge should have started by examining if the specific duties of each job were similar.

Deciding the tasks of food preparation and building maintenance were too different, the court tossed out the original verdict. A minority of justices led by future Chief Justice Margaret Marshall disagreed, saying the court failed to look carefully at how the jobs overlap.

“Today, the court withdraws from the difficult challenge of analyzing comparable work and forsakes the quest for gender equity in workplace compensation,” Marshall wrote in a dissenting opinion.

Since at least 1999, the case has inspired bills meant to clarify the state’s equal pay law, but they have languished without passing.

This year’s bill, sponsored in the House by Rep. Ellen Story, D-Amherst, would plug a sentence into the law that says job comparisons should be based solely on whether two positions entail “comparable skill, effort, responsibility and working conditions.”

That’s the same wording the first judge used in the Everett case. The language also is similar to the federal Equal Pay Act, which bars gender discrimination in pay, but has been the subject of debate about its effectiveness.

Page 2 of 3 - “I think that the time is definitely now to move on it,” said Ellie Adair, policy and operations manager for the National Organization for Women of Massachusetts, on the state bill. “I think the time was yesterday, so I’m really hopeful that it will get some traction.”

Some business groups oppose the legislation. The Associated Industries of Massachusetts believes the bill’s wording is too broad and could confuse employers, said Chris Geehern, executive vice president of marketing and communication.

“Frankly, our issue with the bill is not its intent at all,” he said. “We agree with the intent.”

The business group has proposed adding education, knowledge, experience, ability, productivity and effort to the list of factors that can be used to compare positions.

Jehlen said the Legislature is unlikely to take up the bill any time soon, given its focus on a transportation funding debate. But she said she hopes the bill will again receive a positive report from the Committee on Labor and Workforce Development and move on to the powerful Ways and Means Committee.

Jehlen’s bill is not the only effort to address pay inequity this legislative session. Sen. Harriet Chandler, D-Worcester, also has proposed requiring the state to study job classifications in the executive branch to ensure they are free of gender and racial bias – some women’s groups credit the federal job system for a relatively low pay gap in Washington, D.C.

Without endorsing specific bills, the Caucus of Women Legislators has made pay equity one of its top priorities this year, said co-chairwoman Rep. Ruth Balser, D-Newton.

“With 51 members, we may well have 51 approaches to achieve pay equity, but we are unified in our goal that Massachusetts become a state where women receive equal pay for equal work,” Balser said.

The National Women’s Law Center this month released a report based on 2011 Census data that showed the median annual earnings of a Bay State woman who works full time total 23 percent less than a man’s.

Put another way, Bay State women are paid about 77 cents for every dollar men earn – that’s about $46,200 a year versus $60,300, according to the report.

The Law Center report mirrored a study by the American Association of University Women late last year, which ranked Massachusetts 37th among states and Washington, D.C., in terms of pay equity. That ’s lower than any other New England state.

The underlying problem is not often straightforward discrimination, according to Victoria Budson, executive director of the Women and Public Policy Program at the Harvard Kennedy School of Government and chairwoman of the state Commission on the Status of Women.

“There may be some overt bias, but mostly, this is people making subtle choices, one decision at a time, and when you look at all those subtle choices, you see a picture of people’s bias,” she said.

Page 3 of 3 - Groups such as the conservative Independent Women’s Forum point to evidence that women more often choose lower-paying fields than men, and that women are more likely to take leaves of absence from the workforce. That could explain at least some of the gap.

The 2011 American Community Survey confirms, for example, that women represent more than two-thirds of workers in education fields in Massachusetts, but only 14.8 percent of people in architecture and engineering positions.

Yet the same data shows wage gaps within fields. In computer and math jobs in this state, the median annual earnings for a woman are about $70,300, compared to $87,000 for a man. Women in management, business and financial occupations earned a median annual salary of $64,800, versus $93,600 for men, the Census data shows.

In a state with more highly-educated women than much of the country, this partly shows that the wage gap increases higher up the career ladder, according to Budson. At the upper end of the pay scale, managers often have more discretion over salaries, she said.

“What may be an unconscious bias, but a bias nonetheless, may be playing a role,” she said.

(David Riley can be reached at 508-626-4424 or driley@wickedlocal.com.)